It can happen that a foreign citizen find themselves in a foreign country at the time of their death. This country could be Italy.
Let us analyze the various aspects concerning the “European inheritance regulation”.
In Italy it is established by the Law of 31 May 1995, n. 218 art. 46, first paragraph, that the general criterion for regulating succession was the testator’s citizenship at the time of death.
The same art. 46 in the second paragraph allowed the testator to choose, with a declaration contained in a testamentary form (known as “professio iuris”) which law to apply, being it oneof the Nation in which they had their residence, provided that such residence remained until the moment of their death.
Howevwe, the EU Parliament and Council Regulation of 4 July 2012, published in the Official Journal of the European Union on 27 July 2012, and in force since 16 August 2012, has made significant changes.
This Regulation is applicable to successions opened from 17 August 2015 throughout the European Union, with the exception of Great Britain, Ireland and Denmark, whose governments have chosen to remain excluded from the Regulation.
The Regulation (Chapter III) involves, with respect to Italian legislation, an inversion of regulatory criteria, and given the relationship between internal and European legislation (prevalence of European legislation over that of the individual Nation), art. 46 L. 218/1995 must be automatically disapplied.
For succession only Regulation 650/2012 is applicable, and this both with reference to European citizens and with reference to non-European citizens.
The Regulation specifies “The law designated by this regulation applies even if it is not that of a Member Nation” (Art. 20).
According to the Regulations, the general criterion for the regulation of a succession is that of the habitual residence of the deceased at the time of death (art.21 first paragraph).
The courts of the Member Nation where the deceased had his habitual residence at the time of death are competent to decide on the entire succession.
It is often difficult to precisely identify the boundaries of the chosen criterion because the habitual residence is not necessarily the registered residence. However, the Regulation provides a safeguard clause: in the event that a manifestly closer connection with another Nation emerged, the latter’s law is applicable (Article 21 second paragraph).
The testator has the right to choose (Known as “professio iuris”): the testator can choose, by way of derogation from the established criterion, as the law governing the entire succession, the law of the Nation of which they have citizenship at the time of choice or at the time of death. If they havemore than one citizenship, they can choose the law of any of the Countries of which they have citizenship at the time of choice or at the time of death (art.22)
For example, anon-Italian citizen residing in Italy, if they wish to make the law of the Country of citizenship applicable, they will have to explicitly declare such choice, otherwise Italian law will apply.
This declaration must be made expressly in the form of a testamentary provision or must implicitly derive from the clauses of that provision.
The applicable law governs the entire succession from its opening up until the hereditary division.
Federico Violante, Lawyer
